1
Fair Work Act 2009
s.394—Unfair dismissal
David Djula
v
Centurion Transport Company Pty Ltd
(U2014/15069)
COMMISSIONER WILLIAMS PERTH, 5 FEBRUARY 2015
Termination of employment - application to amend named respondent.
[1] The decision concerns an application made on behalf of Mr David Djula (the
applicant) by his representative the Transport Workers’ Union of Australia (the TWU or the
union). The application is made under section 394 of the Fair Work Act 2009 (the Act) for an
unfair dismissal remedy. The application names the respondent as Centurion Transport
Company Pty Ltd (the named respondent).
[2] The application was made on 12 November 2014.
[3] On 28 November 2014 the named respondent filed a form F3−Employer Response to
Unfair Dismissal Application (the F3) responding to the substance of the application and
asserting that the applicant had failed a second alcohol and drug test within a period of 12
months and so was dismissed.
[4] On 3 December 2014 a letter was sent to the Commission and the applicant’s
representatives from the legal counsel for the named respondent advising that the named
respondent was not the employer of the applicant. The letter explained that whilst the
applicant was first employed by the named respondent in 2010 shortly after commencement
the applicant’s employment was transferred to CFC Consolidated Pty Ltd as trustee for CFC
Employment Trust. The letter also explained that the named respondent had submitted the F3
by mistake. Written documentation in support of the assertion that the applicant’s employer at
the time of dismissal was CFC Consolidated Pty Ltd as trustee for CFC Employment Trust
(the employer) was attached.
[5] Consequently the named respondent declined to participate in conciliation and
requested the Commission hold a jurisdictional hearing.
[6] Later that same day, in response to this information provided by the named
respondent, the TWU emailed the named respondent and the Commission’s Unfair Dismissal
Team advising that the union will be seeking to have the Commission allow a correction to
the name of the respondent in this matter in accordance with section 586 of the Act.
[2015] FWC 790 [Note: An appeal pursuant to s.604 (C2015/1862) was
lodged against this decision - refer to Full Bench decision dated 12 May
2015 [[2015] FWCFB 2371] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB2371.htm
[2015] FWC 790
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[7] Consequently the application was listed for hearing to determine the named
respondent’s objection and the applicant’s application to amend the named respondent. This
decision deals with these issues only.
Factual findings
[8] The facts are not in dispute.
[9] This unfair dismissal remedy application names the respondent as Centurion Transport
Company Pty Ltd.
[10] When the applicant was employed in 2010 he was employed by the named respondent
however shortly thereafter his employment was transferred to CFC Consolidated Pty Ltd as
trustee for CFC Employment Trust.
[11] At the time the applicant was dismissed his employer was not the named respondent
but rather CFC Consolidated Pty Ltd as trustee for CFC Employment Trust.
[12] Extracts of ASIC company records provided by the TWU show that the named
respondent and the employer have the same registered office address and the same principal
place of business address.
[13] The registered office address is the address for both of the companies’ accountants.
[14] The two companies however have separate management structures and separate
operational structures. The named respondent operates in the north west of Western Australia
and the Perth metropolitan area whilst the employer operates across the country in a range of
different interests.
[15] The employer was not aware of this application until advised of its existence by the
named respondent’s legal representatives on 3 December 2014.
[16] I note that both the named respondent and the employer now have that same legal
representative.
[17] The applicant had a copy of an Alcohol and other Drug policy which was apparently
applicable to employees of “Centurion”.
[18] The applicant had been receiving regular PAYG payment summaries which identify
his employer’s correct ABN number and name CFC Employment Trust as the payer and he
was provided with a separation certificate which identified the employer as CFC Consolidated
Pty Ltd as trustee for CFC Employment Trust.
Submissions
For the applicant
[19] For the applicant it is argued that the fact that his employer had provided the applicant
with a copy of an Alcohol and other Drug policy that refers to the business “Centurion”
[2015] FWC 790
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contributed to the applicant and his representatives making the error in naming the incorrect
employer respondent.
[20] Given that both companies operate from the same principal place of business and have
the same registered office it is submitted it cannot be said that the employer has been
disadvantaged by the error and was unaware that the applicant was challenging his
termination of employment.
[21] Mr Cardaci is a Director of both companies and will have received the original
application lodged by the applicant.
[22] The Commission should exercise its power under section 586 of the Act and amend
the application to make the name of the respondent to be that of the applicant’s employer at
the time of his dismissal, CFC Consolidated Pty Ltd as trustee for CFC Employment Trust.
For the respondent
[23] It would be prejudicial to replace the named respondent identified on the application
with the name of the employer as the applicant has sought. To do so would deny the employer
with the opportunity to take other actions they may have wished to should they have been
notified of the claim against them at the earliest time when it was made.
[24] With respect to the powers of the Commission it is submitted that section 586 of the
Act cannot be legitimately interpreted to allow the name of a party to an application to be
changed because this would be akin to setting aside the original application which named the
respondent and invoking a new application naming the employer.
[25] This would be beyond power. The Full Bench decision of the Commission in Narayan
v MW Engineer’s Pty Ltd1 held at paragraph [6] “...s. 586 provides a power to correct or
amend an application, or two waive an irregularity in the form or manner in which an
application is made. It is not a power to revoke or set aside an application.” (Underlining
added)
Consideration
[26] The first question to be considered in this matter is whether the Commission does have
the power under section 586 of the Act to amend the application as the applicant submits. If
the Commission does have the power to amend the application as the applicant seeks the
second consideration is whether in the particular circumstances of this case the Commission
should exercise its discretion to do so.
[27] The relevant section of the legislation is set out below.
“586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to
a matter before the FWC, on any terms that it considers appropriate; or
[2015] FWC 790
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(b) waive an irregularity in the form or manner in which an application is made to the
FWC.”
[28] In a recent Commission decision2, Deputy President Gooley considered whether the
Commission can amend an application by changing the name of the respondent.
“Can an application be amended to permit a change in the name of the Respondent?
[7] The Commission has, under s.586 of the Act, ordered a respondent’s name to be
changed.
[8] In Tobiahs Pty Ltd v Jessica Vidacic the Full Bench rejected as submission by
Tobias Pty Ltd that “as it had not been properly served with the originating
application for relief naming it as the respondent employer ... the Commission had no
jurisdiction to make a decision and order against Tobias.” In that matter the original
application had named Foxtons Estate Agents as the employer. In that case there was
no order changing the name of the respondent but the orders were directed to Tobias
Pty Ltd. The Full Bench said that the reference to the trading name rather than the
legal name did not deprive the Commission of jurisdiction.
[9] In Ms Kataryzna Wybranski v Telstra (Contracted by Regent Recruitment)
Commissioner Roe permitted the name of the respondent to be amended. He held that:
“[24] Taken as a whole, the circumstances and the material before me amply
demonstrate that the Applicant was seeking to make an unfair dismissal
Application against her employer and that she had a reasonably based belief
that there was a hybrid employment situation involving Telstra and the labour
hire firm Regent Recruitment. I accept that the identification she used “Telstra
(Contracted by Regent Recruitment)” was intended to identify that Regent
Recruitment had hired the Applicant and that she had worked under an
arrangement with and for Telstra.
[25] Telstra is not and never was the Respondent. The Applicant simply failed
to accurately specify the Respondent and put in a hybrid name.”
[10] Commissioner Roe further considered that if he were not able to amend the
application he would have granted Ms Wybranski an extension of time to lodge her
application against Regent Personnel Pty Ltd trading as Regent Recruitment.
[11] In T De Silva-McKay v EQ Life Pty Ltd Senior Deputy President Watson held that
s.586 of the Act provides a power for the Commission to amend the name of the
Respondent.6 His Honour exercised his discretion to allow the amendment because
there had been a transfer of business to Equal Media Pty Ltd and the termination of
Ms De Silva by EQ Life Pty Ltd came about informally, was not documented and was
inconsistent with her contract of employment which required written notice of
termination of her employment. She performed the same work under the same
conditions for both employers and her termination letter referred to her employment
with both entities. In addition there was a clear commercial relationship between both
businesses and Equal Media Pty Ltd knew of the application as its representative gave
evidence in the hearing.
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc189.htm#P55_4674
[2015] FWC 790
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[12] In Ioannou v Northern Belting Services Pty Ltd 8 the Full Bench held that s.586
cannot be used to allow an amendment to an application that fundamentally changes
the kind of application that was originally made.9 The Full Bench was considering
whether it could permit an amendment of an unfair dismissal application to make it a
general protection application.
[13] In this case Mr Oznek is not seeking to change the nature of the application.
[14] He wishes to pursue his unfair dismissal application. He wishes to change the
name of the respondent.
[15] In line with existing authority I find that I have the power to grant the application
however, the power to amend an application is discretionary.
[16] In his application to amend Mr Oznek did not in any way explain why he made
his original application against A.B Oxford or as he suggested later in
correspondence against Mr Fleizig, when he knew at the time he was employed by an
employment agency. He was provided with a letter from Maric on 11 July 2014 which
clearly advised him that his employment with Maric had been terminated. This was
before he completed his unfair dismissal application. There is no evidence before me
that would support a finding that there was any confusion about the identity of Mr
Oznek’s employer. It appears from the documents provided by Mr Oznek that he wants
those involved in the incident that led to the ending of his employment brought to
account. This is not the purpose of an unfair dismissal claim. An unfair dismissal
claim is an action against the employee’s employer alleging that its decision to
terminate the employment was unfair.
[17] I note that Mr Oznek was unrepresented, though in his original application he
advised that he “was pursuing this through Human Rights Victoria and a private
lawyer.”
[18] Had Mr Oznek attended the hearing he may have been able to provide a
satisfactory explanation for his failure to correctly identify his employer. However he
did not attend the hearing and did not seek an adjournment of the application. This
was Mr Oznek’s application and the obligation was on him to persuade the
Commission to exercise its discretion in his favour particularly when the application
was opposed by Maric.
[19] In all the circumstances I am not prepared to exercise my discretion to permit the
amendment of the application and that application is dismissed.” (Reference omitted)
[29] The nature of the amendment sought in this application is quite different from the
examples in the cases considered by Deputy President Gooley above. This current matter is
not a question of whether the reference to an employer by its trading name rather than its legal
name is acceptable, nor whether an employee is rightly confused because there was some
form of “hybrid” employment involving a labour hire firm and a principal. Nor is this a
situation where the change in the legal identity of the applicant’s employer had neither been
documented nor carried out consistent with her contract unemployment and where the
termination letter referred to employment with both legal entities.
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc189.htm#P60_5609
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc189.htm#P59_5426
[2015] FWC 790
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[30] In this matter currently before Commission the amendment sought by the applicant is
to replace the name of the respondent which is a company who was not the applicant’s
employer at the time he was dismissed, but had been some four years earlier, with the name of
another company that was his employer at the time he was dismissed and had been his
employer for approximately four years.
[31] Further whilst the applicant may have been confused by the title of the business
mentioned on the Alcohol and other Drug policy there clearly were other documents which he
had been receiving from his employer for some years that more correctly referred to the true
legal identity of his employer and in the case of his separation certificate identified the legal
identity of his employer in full.
[32] This is not a situation where the applicant has simply made a mistake when naming his
employer such as by misspelling the name or not providing the full name of his employer.
The amendment sought by the applicant changes the legal entity respondent to the application
which arguably changes such a fundamental element of the application that if it was allowed
the original application has effectively been revoked and a new application created by the
Commission. As the respondent has submitted such an amendment, on the authority of the
Full Bench in Narayan v MW Engineer’s Pty Ltd3 at [6], goes beyond the power of section
586 of the Act which is not a power to revoke or set aside an application. It would follow
from this that section 586 of the Act is also not a power that allows the Commission to create
an application.
[33] What is sought is not an amendment to the respondent’s name but to totally change
who the respondent is. Considering the nature of the amendment sought in this matter my
conclusion is that this amendment is beyond the power of section 586 of the Act and
consequently the application to amend the name of the respondent is dismissed.
[34] Consequently I would uphold the objection of the named respondent who was not the
applicant’s employer and dismiss the substantive application for want of jurisdiction.
[35] If I am wrong on this and there is indeed power for the Commission to make the
amendment sought then there are serious considerations as to whether or not the Commission
should exercise its discretion in the particular circumstances of this case and it is relevant to
consider the specific provisions of the Act that apply to applications for an unfair dismissal
remedy.
[36] An application made under section 394(2) of the Act must be made within 21 days
after the dismissal took effect. Changing the named respondent to be a different legal entity at
a time well beyond 21 days after the dismissal has the effect of circumventing this
requirement. It is likely that the legislature set a statutory time limit for making unfair
dismissal remedy applications for good public policy reasons. These are likely to have
included providing some certainty to employers who dismiss employees that, subject to the
discretion of the Commission to extend time to make an application, 21 days after they have
dismissed an employee there will not be a challenge to their decision by an application to this
Commission. Some certainty in this regard is obviously important for employers so that they
can with some confidence replace a dismissed employee and is equally important for any
replacement employee who is newly engaged.
[2015] FWC 790
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[37] The legislation does provide that where the Commission finds there are exceptional
circumstances an extension of the 21 day time frame within which to make an unfair dismissal
remedy application may be allowed. Section 394(3) of the Act provides that in considering
whether there are exceptional circumstances the Commission must take into account whether
there would be any prejudice to the employer, including prejudice caused by the delay in
making an application. This requirement of the Act would be circumvented if the Commission
was to amend an application, more than 21 days after a dismissal, to change the legal entity
that is the respondent. The effect of the amendment sought in this case, from the perspective
of the applicant’s employer, would be to allow an application to be made against the employer
three or more months after the dismissal occurred without any requirement on the
Commission to have consideration for any prejudice this delay in making the application may
have caused the employer.
[38] As can be seen the particular amendment sought in this case if granted would
circumvent a number of express provisions of the Act potentially to the employer’s
disadvantage. In my view the Commission should be very cautious in agreeing to such an
amendment which would have the effect of overriding the express legislative requirements of
the Act. This is particularly the case where the applicant has an alternative course of action
being to discontinue this application and file a fresh application correctly naming the
employer as the respondent. If this had been done the Commission would have been required
to apply the statutory considerations to that application being made out of time as the
legislature intended.
[39] If there is power to do so my decision is not to exercise the discretion to amend this
application in this instance and rather I will uphold the objection of the named respondent and
dismiss the application because the respondent was not the applicant’s employer.
[40] An order to this effect will now be issued.
COMMISSIONER
Appearances:
G Ferguson of the Transport Workers’ Union of Australia for the applicant.
B Riddle of Greemonts for the named respondent and employer.
Hearing details:
2015.
Perth:
January 30.
[2015] FWC 790
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Printed by authority of the Commonwealth Government Printer
Price code C, PR560642
1 [2013] FWCFB 2530.
2 Yasin Oznek v Oxford Cold Storage [2015] FWC 189.
3 [2013] FWCFB 2530.
